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That’s bad news for the Trump administration, which is currently asking the justices
to reinstate its controversial executive order banning travel of certain individuals
from six predominantly Muslim countries. The Supreme Court hasn’t weighed in on that
request in an unrelated case.

Here, though, the justices said Congress can’t make it harder for unwed fathers to
confer citizenship on their children born abroad than unwed mothers.

The government had argued that Congress is entitled to “great deference” from the
courts in the immigration sphere, an argument it’s also making in the travel ban cases.

The Supreme Court didn’t agree. Instead, it reviewed the laws under the “heightened
scrutiny” standard applicable to laws of domestic application.

The fact that a law touches on immigration is no longer the “overriding, dominant
factor” precluding judicial review that it has been in the past,
Gabriel Chin, an immigration professor at University of California, Davis School of Law, told
Bloomberg BNA June 12.

But distinctions between citizenship—at issue in
Morales-Santana—and entry of aliens—at issue in the travel ban case—could cause the Supreme Court
to “give
Morales-Santana short shrift when considering analogous” discrimination issues in the travel ban
case, immigration professor
Kit Johnson, of University of North Dakota School of Law, Grand Forks, N.D., told Bloomberg BNA
in a June 12 email.

Motives Matter

Until recently, the longstanding doctrine of “plenary power” precluded courts from
second guessing Congress or the president on immigration matters. The court famously
relied on that doctrine in refusing to strike down a law that prohibited Chinese laborers
from immigrating to the U.S.

But
cracks in that doctrine have developed in recent decades, Chin said.

In particular, courts have been subjecting immigration laws to the same kinds of requirements
that are applicable to domestic laws, he said. They’ve been “domesticating constitutional
immigration law,” Chin said.

The court’s decision here further signals “a greater willingness by the court to apply
regular constitutional rules and heightened scrutiny to immigration laws enacted by
Congress,”
Jennifer Koh, an immigration professor at Western State College of Law, Irvine, Calif., told Bloomberg
BNA in a June 12 email.

That could mean that the Supreme Court “is prepared to play a more active role in
aligning the immigration laws with mainstream constitutional principles and norms,”
including examining the motives behind immigration laws, she said.

Providing a Glimpse

Motives are at the heart of the travel ban litigation that’s now come before the justices.

Challengers of the executive order say that the president’s policy was motivated not
by national security—as the administration argues—but instead by animus toward Muslims.
Such a discriminatory purpose runs afoul of the establishment clause’s prohibition
of favoring one religion over another, the challengers claim.

Lower courts temporarily halted the executive order, with some finding that the order
was motivated by a discriminatory purpose.

It will likely be a while before we know if the Supreme Court agrees—if we hear at
all. The Supreme Court hasn’t agreed to hear the case yet, but they may agree to hear
it before the end of the term this month

The court’s decision here may provide a glimpse of how the court will approach the
issue, if it eventually agrees to take it up.

Overbroad Generalizations

The
statute at issue provides birthright citizenship for some children born abroad of U.S. citizen
parents. To confer citizenship, unwed fathers must show that they lived in the U.S.
for at least five years prior to their child’s birth. Unwed mothers only have to have
lived in the U.S. one year.

Luis Ramon Morales-Santana wanted to claim citizenship though his father to avoid
deportation. But his father fell just 20 days short of the requisite presence in the
U.S to confer citizenship.

The law dates “from an era when the lawbooks of our Nation were rife with overbroad
generalizations about the way men and women are,” Justice Ruth Bader Ginsburg wrote
for the court. “During this era, two once habitual, but now untenable, assumptions
pervaded our Nation’s citizenship laws and underpinned judicial and administrative
rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural
and sole guardian of a nonmarital child,” she said.

“Today, laws of this kind are subject to review under the heightened scrutiny that
now attends ‘all gender-based classifications,’” the court said. The law at issue
here couldn’t pass that test, it said.

Surprising Remedy

But that’s little help to what could be
thousands of individuals seeking U.S. citizenship as a result of the court’s opinion.

That’s because the court imposed, in the interim, the stricter standard to both unwed
mothers and fathers, rather than applying the less stringent one. The court left it
to Congress to design a permanent non-discriminatory scheme.

That interim remedy was surprising, Chin said, as courts typically extend the beneficial
treatment in equal protection cases, rather than take it away.

But that’s likely the choice that Congress would have made if put to the choice, the
Supreme Court said, looking at the statute as a whole.

Going forward, the decision will make it more difficult for individuals born abroad
to claim citizenship through an unwed U.S. citizen mother, Koh said. But the effect
will be “narrow,”
she added. The standard remains the same as it has always been for those claiming
citizenship through an unwed father, and even to married parents.

Citizenship Versus Exclusion

Johnson thought the effect of the decision would be even narrower. It likely won’t
significantly affect how the court approaches other immigration laws, including the
travel ban, she said, disagreeing with Koh and Chin.

The case is about citizenship, she said. “While citizenship and immigration are frequently
considered together—especially since many migrate with the goal of achieving citizenship—they
are distinct issues.”

In particular, because it
“isn’t about immigration in the sense of the admission or exclusion of non-citizens,”
it likely doesn’t affect the plenary power doctrine, Johnson said.

Indeed, the court specifically distinguished its 1977 decision in
Fiallo v. Bell, upon which the government relies in the travel ban cases, to discourage judicial
review.

“Applying minimal scrutiny” in
Fiallo, the court “upheld the provision, relying on Congress’s ‘exceptionally broad power’
to admit or exclude aliens,” the court said here. “This case, however, involves no
entry preference for aliens,” it said.

Blind Eye

The case won’t be irrelevant to the travel ban challenges, though, Johnson said.

In particular, the court made clear it wouldn’t accept “post hoc rationalizations”
for laws that were invented during litigation.

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